Nostrand v. Balmer
| Decision Date | 29 January 1959 |
| Docket Number | No. 34451,34451 |
| Citation | 53 Wn.2d 460,335 P.2d 10 |
| Court | Washington Supreme Court |
| Parties | Howard L. NOSTRAND and Max Savelle, Respondents, v. Thomas BALMER, Harold S. Shefelman, Dorothy Bullitt, Albert B. Murphy, Robert J. Willis, John L. King and Joseph Drumheller, as the Board of Regents of the University of Washington; Charles E. Odegaard, President, University of Washington, and John J. O'Connell, Attorney General, State of Washington, Appellants. |
Solie M. Ringold, Francis Hoague, Seattle, for respondents.
This action was commenced by two professors (respondents), employed by the state of Washington to teach at the University of Washington, for the purpose of obtaining a declaratory judgment 1 adjudicating Laws of In their complaint, respondents alleged their employment under contract as professors of the University of Washington; that appellants (the university board of regents, president, and vice-president, and the state attorney general) are charged with 'the duty of establishing, enforcing, carrying out and administering the provisions of * * * the Act'; that appellants have demanded that respondents sign and swear to an oath; that, unless respondents comply with such demands, their employment contracts with the university will be terminated by appellants; that, unless appellants be restrained from enforcing the act and insisting upon the execution of the oath, respondents will suffer irreparable injury not compensable in monetary damages; and that respondents have no adequate remedy at law.
1955, chapter 377, 2 to be violative of several provisions of the constitutions of the United States and of this state, and seeking a permanent injunction enjoining the enforcement thereof.
In so far as is presently material, the affidavit which appellants demanded that respondents subscribe, upon oath, recites above the jurat and place provided for signature:
'(2) That I am not a subversive person or a member of the Communist Party or any subversive organization, foreign or otherwise, which engages in or advocates, abets, advises, or teaches the overthrow, destruction or alteration of the constitutional form of the government of the United States, or of the State of Washington, or of any political subdivision of either of them, by revolution, force or violence;
'That this statement is voluntarily made by me, pursuant to the provisions of Chapter 377, Laws of 1955, with full knowledge that the same is subject to the penalties of perjury.'
Prior to trial, respondents requested, in writing, and obtained certain admissions of fact. Other facts which respondents requested appellants to admit were denied. The Trial to the court resulted in the entry of findings of fact (substantially in accord with the averments contained in the complaint), conclusions of law, and a final decree holding the entire act of 1955 to be violative of the constitution of this state, and permanently restraining appellants from administering and enforcing any of the provisions therein contained. 3 This appeal followed.
record before us does not reveal what disposition, if any, the trial judge made of these disputed factual matters.
Before considering the respective contentions advanced by the parties, and because chapter 377, Laws of 1955, is amendatory legislation, it is necessary, in order to place it in its proper perspective, to analyze the act amended thereby, i. e., the subversive activities act of 1951, 4 and to consider its background and legislative history.
The 1951 act was a comprehensive statute enacted by the legislature pursuant to executive request and as a result of the report of the joint fact-finding committee on un-American activities in the state of Washington (otherwise referred to as the Canwell committee). This committee was created by house concurrent resolution No. 10, 5 adopted by the legislature at its 1947 session, and was directed to investigate subversive activities in the state of Washington and to file a report with the thirty-first (1949) legislature.
Acting pursuant to authority vested in it by this resolution, the committee conducted its investigation and held extensive public hearings in 1948. 6 As directed, the committee reported its findings, conclusions, and recommendations to the legislature at its 1949 session. 7
After receiving and considering the committee's report, the thirty-first (1949) legislature adopted, as part of its general appropriations act, a proviso 8 (similar to that adopted by the 1947 legislature 9) designed to prevent public funds from reaching public employees who advocated, or who were members of organizations that advocated, the overthrow of the government of the United States by force or violence.
In his message to the thirty-second legislature at the commencement of its regular session in January, 1951, the The subversive activities act originally passed by the legislature in 1951 consisted of twenty-two sections. Five Sections 11, 12, 13, 14 and 17 bear directly upon the problem before us and are set out in the margin. 14 These sections impose conditions upon eligibility The terms 'subversive person,' 'subversive organization,' and 'foreign subversive organization' (used in these five sections) are particularly defined in section 1 of the act. The definition of 'subversive person' was amended in 1953 15 to specifically provide that a person must have knowledge that an organization is a 'subversive organization' or 'foreign subversive organization' (as elsewhere defined in section 1) before such person becoming or remaining a member thereof can be deemed to be a 'subversive person.' (This 1953 amendment is a complete answer to respondents' argument in their brief concerning the alleged lack of scienter as an essential element in this section.) Cf. Wieman v. Updegraff, 1952, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216.
governor pointed out the national emergency then existing, its causes and potential effects, and the strategic geographical position of the state of Washington in any such emergency. 10 He further urged that appropriate legislation be immediately enacted in order to curb subversive activities in this state, particularly in view of the then existing national emergency and the disclosures made through the efforts of the joint fact-finding committee on un-American activities (Canwell committee) created by house concurrent resolution No. 10. 11
of these (§§ 6, 7, 8, 10, and 21), containing administrative provisions, were vetoed by the governor. 12 The remaining seventeen sections became effective on March 19, 1951, upon executive approval. 13 Each of these sections falls into one of three general classifications: penal, administrative, or regulatory
for public employment in sensitive occupations and require that all such state employees, or applicants for state employment, take an oath, subject to the penalties of perjury, as a prerequisite of public employment or the continuance thereof
With this legislative history and background in mind, we now turn to the consideration of Laws of 1955, chapter 377, which was held by the trial court to be unconstitutional in its entirety. As previously stated, this act consists of only four sections, of which the first two purport to amend sections 12 and 13 of the 1951 act (RCW 9.81.070 and 9.81.080), and the latter to purport to add new sections thereto (cf. RCW 9.81.082 and 9.81.083). These latter two sections will be considered in the order ruled upon by the trial court and discussed by the respective parties in their briefs.
Section 3 of the amendatory act provides:
'For the purpose of this act, membership in a subversive organization shall be membership in any organization after it has been placed on the list of organizations designated by the attorney general of the United States as being subversive pursuant to executive order No. 9835.'
The trial court concluded that:
'Section 3 of chapter 377, Laws of 1955, constitutes an unconstitutional delegation of legislative authority to an Appellants first assign error to this conclusion. They argue that section 3 was merely an adoption by our legislature of a factual determination made by a foreign administrative agency (U. S. attorney general). This argument is unappealing for at least three reasons:
officer of the United States over which the state government has no control and without adequate standards being set forth to guide such officer in the exercise of such delegation.'
(1) Executive Order No. 9835, promulgated by the president of the United States on March 21, 1947 (5 U.S.C.A. § 631 note; 12 F.R. 1935; 3 C.F.R., 1943-1948 Comp., p. 627), was specifically revoked by Executive Order No. 10450 (5 U.S.C.A. § 631 note, 18 F.R. 2489; 3 C.F.R., 1953 Supp., p. 72), issued April 27, 1953 (almost two years prior to the enactment of § 3).
(2) The method followed by the attorney general for listing subversive organizations pursuant to Executive Order No. 9835 was held by the supreme court of the United States to be violative of the due process clause of the Fifth Amendment to the United States constitution in Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 71 S.Ct. 624, 95 L.Ed. 817 (April 30, 1951), which was almost four years prior to the enactment of § 3.
(3) Section 3 purported to include 'membership in any organization after it has been placed on the list of organizations designated by the attorney general of the United States as being subversive.' This would include organizations listed by him in futuro ad infinitum. Statutes attempting to adopt by reference future Federal rules, regulations or statutes are unconstitutional. State ex rel. Kirschner v. Urquhart, 1957, 50 Wash.2d 131, 310 P.2d 261.
Thus it is apparent that section 3 purported to adopt unconstitutional findings of ...
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Baggett v. Bullitt, 5598.
...of this opinion an order in accordance with the conclusions herein stated. 1 Chapter 9.81, Revised Code of Washington. 2 Nostrand v. Balmer, 53 Wash.2d 460, 335 P.2d 10; Nostrand v. Little, 362 U.S. 474, 80 S.Ct. 840, 4 L.Ed.2d 892; Nostrand v. Little, 58 Wash.2d 111, 361 P. 2d 551; Nostran......
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Nostrand v. Little, 34451
...case was originally decided by this court January 29, 1959, and was then entitled Nostrand v. Balmer. Our decision is reported in 53 Wash.2d 460, 335 P.2d 10, to which reference is made for a preface to the present Thereafter, the case was appealed to the Supreme Court of the United States ......
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Baggett v. Bullitt, 220
...Supreme Court has said that knowledge is to be read into every provision and we accept this construction. Nostrand v. Balmer, 53 Wash.2d 460, 483—484, 335 P.2d 10, 24; Nostrand v. Little, 58 Wash.2d 111, 123—124, 361 P.2d 551, 559. But what is it that the Washington professor must 'know'? M......
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Cramp v. Board of Public Instruction of Orange County, 30598
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